HIPAA Regulations and Estate Planning

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a major American law that serves many purposes. Its effects on estate planning become obvious when the HIPAA Privacy Rule affects patient confidentiality.

The intent of the Privacy Rule is to create a category of protected health care information that may not be shared with other people and entities without the express permission of the patient. However, the Privacy Rule does allow a person to complete a "valid authorization" to release protected health information by the medical care provider to a "personal representative" of the individual. In general, authorization is required for any release of protected health information. In addition, if the requested information is psychotherapy notes, a specific authorization for such psychotherapy notes is required. A "personal representative" as defined under HIPAA is a "person legally authorized to make health care decision on an individual's behalf or to act for a deceased individual or the estate."

One thing that is very important to understand is that any medical power of attorney that a person has granted to the personal representative must include HIPAA language. If it does not, then a person may have placed him- or herself into a position in which they no longer have the capacity to make medical decisions for themselves, but it may be difficult to release critical information to others with respect to the person's medical condition. This is why language in a medical power of attorney must address HIPAA regulations.